FRAMEWORK AND GUIDELINES ON
LAND POLICY IN AFRICA
Land Policy in Africa: A Framework to Strengthen Land Rights, Enhance Productivity and Secure Livelihoods
Economic Commission for Africa African Development Bank
African Union How can the land sector play its proper role
in economic growth, poverty alleviation and environmental sustainability, and in promoting peace and security in Africa? This Framework and Guidelines on Land Policy in Africa, developed by the AU-ECA-AfDB Consortium tries to answer this question.
From the perspective of the Framework and Guidelines (F&G), land policies should be considered a prerequisite for economic growth and sustainable human development. Therefore, African governments need to develop holistic and comprehensive land policies at national level. Such land policies should be based on clear understanding of critical issues and challenges which must be tackled. The policies need to be based on inclusive and participatory approaches.
However, developing appropriate land policy is not an end per se. In order to have a positive impact on the livelihoods of poor African people in rural and urban areas, the policies need to be effectively
implemented. Land policy implementation entails the translation of the adopted policy into a programme of land reform. Based on experiences documented across the continent, the F&G provides lessons and best practices for effective and efficient land policy implementation processes. In this regard, African governments need to develop appropriate land administration systems, including structures and institutions for land rights delivery and land governance.
Having been developed through a highly consultative process and having been endorsed by the highest decision making organs of the African Union, the Framework and Guidelines on Land Policy in Africa is widely acknowledged in the continent as a valid and legitimate tool. However, this is just the beginning:
the tool needs to be made available and to be used by governments and other stakeholders at regional, national and local levels where land policies are developed and implemented. The implementation phase of the F&G is designed to address this crucial challenge.
FRAMEWORK AND GUIDELINES ON
LAND POLICY IN AFRICA
Land Policy in Africa: A Framework to Strengthen Land Rights, Enhance Productivity and Secure Livelihoods
Economic Commission for Africa African Development Bank
African Union
© AUC-ECA-AfDB Consortium, 2010 Addis Ababa, Ethiopia
Email: landpolicy@uneca.org All rights reserved
First printing September 2010
Material in this publication may be freely quoted or reprinted. Acknowledgement is requested, together with a copy of the publication.
Edited and designed by the ECA Publications and Conference Management Section (PCMS).
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Table of Contents
1 Background 1
1.1 Justification 1
1.2 The Process of Developing the Framework and Guidelines 2
2 The Context of the Land Question 5
2.1 Conceptualising the Land Question 5
2.2 The Geographical and Ecological Context 5
2.3 The Political Context 6
2.4 The Economic Context 7
2.5 The Social and Cultural Context 8
2.6 The Demographic Context 9
2.7 Emerging Global and Strategic Issues 10
2.8 Implications for the Role of Land in the Development Process 11
3 Land in the National Development Process 13
3.1 Recognizing the Centrality of Land in Development 13 3.2 Mainstreaming Land in Poverty Reduction Programmes 15
3.3 Making Agriculture an Engine of Growth 16
3.4 Managing Land for Other Uses 16
3.5 Protecting Natural Resources and Ecosystems 18
3.6 Developing Effective Land Administration Systems 20
3.7 Implications for Land Policy Development 21
4 The Process of Land Policy Development 23
4.1 An Emerging Consensus across the Continent 23
4.2 Developing a Vision for Land Policy Development 24 4.3 The Status of Land Policy Development in Africa 24 4.4 Challenges to Comprehensive Land Policy Development 25 4.5 Appropriate Strategies for Land Policy Development 26 4.6 Summary of Fundamental Steps in Land Policy Development 29
5 Land Policy Implementation 31
5.1 The Challenge of Land Policy Implementation 31
5.2 Some Common Impediments to Land Policy Implementation 31 5.3 Necessary Steps for Effective Land Policy Implementation 33 5.4 Assessing the Impact of Land Policy Implementation Processes 36
6 Tracking Progress in Land Policy Development and Implementation 37
6.1 The Development of Tracking Systems 37
6.2 Challenges Related to Tracking 38
6.3 Development and Application of Tracking Principles 39
6.4 The Need for Feedback 40
7 Overall Conclusion 41
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List of abbreviations
ACHPR African Charter on Human and Peoples Rights AfDB African Development Bank
AU African Union
AUC African Union Commission CSO Civil Society Organizations DRC Democratic Republic of Congo EAC East African Community
EC Executive Council of the African Heads of State and Government ECA United Nations Economic Commission for Africa
ECOWAS Economic Community of West African States F&G Framework and Guidelines on Land Policy in Africa FDI Foreign Direct Investment
GDP Gross Domestic Product GHCs Green House Gases GNC Gross National Product
ICT Information Communication and Technology IDPs Internally Displaced Persons
IGAD Inter-Governmental Authority on Development IPCC Intergovernmental Panel on Climate Change LIS Land Information Systems
MDGs Millenium Development Goals
NEPAD New Economic Partnership for African Development NGOs Non-Governmental Organizations
PME Participatory Monitoring and Evaluation
PRC Permanent Representative Council of the African Heads of State and Government
RECs Regional Economic Communities
SADC Southern African Development Community UN United Nations Organization
UNEP United Nations Environment Programme
UN-Habitat United Nations Programme for Human Settlements
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Acknowledgments
The Framework and Guidelines on Land Policy in Africa is the result of a three-year road map of activities that involved intense reflection, rigorous consultations and exemplary collaboration across the continent. These activities involved African continental and regional institutions, governments, prominent African land experts from all regions of the continent, and representatives of land stakeholders and development partners. The activities of the road map were implemented by a tripartite consortium of the African Union Commission (AUC), the United Nations Economic Commission for Africa (ECA) and the African Development Bank (AfDB), through a Land Policy Initiative (LPI). The AUC provided overall leadership for the functioning of the Initiative, with ECA and AfDB providing technical support and mobilizing effective partnerships to ensure its success.
The preparation of this document was made possible by the excellent leadership of the heads of the three institutions constituting the consortium: Dr Jean Ping, Chairperson of AUC; Mr Abdoulie Janneh, United Nations Under-Secretary-General and Executive Secretary of ECA; and Dr Donald Kaberuka, President of the AfBD Group. Overall guidance and oversight to the initiative was provided by Ms. Rosebud Kuwidjila and Ms. Tumusiime Rhoda Peace, respectively former and current Commissioner for Economy and Agriculture of the African Union Commission.
Overall supervision and strategic guidance to produce the document in its current form and content was provided by the Steering Committee of the Land Policy Initiative comprising directors of the three continental organizations. These directors are Dr Ahmadu Babagana and Dr Abebe Haile-Gabriel respectively former and current directors of the Department of Rural Economy and Agriculture of AUC; Dr Josue Dione, Director of the Food Security and Sustainable Development Division of ECA; Mr Chuku-Dinka Spencer, former Director of Agriculture for West and Central Africa of AfDB; and Mr Philibert Afrika and Mr Steve Kayizzi-Mugerwa respectively former and current directors of Operational Resources and Policies Department of AfDB.
Under the guidance of the Steering Committee, focal persons from the three institutions provided intellectual inputs and resource mobilization, and built effective partnerships which were critical to the success of the LPI activities. These focal persons were Dr Brave Ndisale and Dr Emmanuel Tambi, both former staff members of AUC and Mr Khecha Abderrahmane from AUC; Dr Joan Kagwanja, former staff member of ECA; Mr Frank Kufakwandi of AfDB, Ms Esther Kasalu Coffin, former staff of AfDB, and Ms Rachel Aron and Ms Mary Manneko Monyau from AfDB. Further support was provided by Mr. Maurice Tankou of ECA.
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An African Task Force on Land Policy chaired by the late Prof Hastings W.O. Okoth-Ogendo (Kenya) provided intellectual, technical and political guidance to the LPI throughout the implementation of the road map. Other members of this Task Force were: Prof Ahmed O.
El-Kholei (Egypt); Mr Kwame Gyan (Ghana); Ms Susan Mbaya (Zimbabwe); Prof Sam Moyo (Zimbabwe); Mr Paul Tafam (Cameroon); and Dr Hubert Ouedraogo (Burkina Faso).
The preparation of the Framework and Guidelines was informed by regional assessment studies on land policy that were undertaken in collaboration with Africa’s regional economic communities. We are grateful to Ms Margaret Nyirenda and Mr Stephen Nanthambwe of the Southern African Development Community (SADC); Mr Pascal Moussavou of the Economic Community of Central African States (ECCAS); Dr Chike C.
Ezeudeh of the Economic Community of West African States (ECOWAS); Mr Mahalmoudou Hamadoun Maiga of Comité Permanent Inter-Etats de Lutte contre la Sécheresse au Sahel (CILSS); Mr Yufnalis Okubo of the Intergovernmental Authority on Development (IGAD);
and Mr Bakary Coulibaly of the Community of Sahelo-Saharan States (CENSAD) for their collaboration in the preparation of the regional assessments. The inputs of staff members from partner institutions including Dr. Philip Dobie, Ms Verity Nyaga and Dr Eric Patrick of United Nations Development Programme (UNDP), Mr Marco Morettini of the European Commission, Prof Paul Mathieu, Dr Lamourdia Thiombiano and Mr Meshack Malo of FAO, Mr Remy Sietchiping of UN-HABITAT, were instrumental to successful regional activities.
Regional Experts were key to producing regional assessment reports on land policy that formed the basis for discussions at the regional consultations. Prof Cherryl Walker (South Africa), Mr Simeao Cambaco (Mozambique) and Mr Wolfgang Werner (Namibia) undertook the Southern Africa assessment; Mr Eddie Nsamba-Ngayiiya (Uganda), Prof Patricia Kameri-Mbote of (Kenya) and Prof J.M. Lusugga Kironde of Tanzania prepared the assessment for Eastern Africa; Dr Odame W. Larbi of Ghana, Prof Mariatou Kone of Côte d’Ivoire and Dr Adam M. Kandine of Niger conducted the West Africa assessment; Prof Paul Tchawa of Cameroon, Prof Kalambaye Lumpungu of the Democratic Republic of Congo and Dr Domitien Ndihokubwayo of Burundi undertook the Central Africa assessment;
while Prof Ahmed O. El-Kholei of Egypt and Dr Lokman Zaibet of Tunisia prepared the Northern Africa assessment.
Many thanks go to the governments of Burkina Faso, Cameroon, Ethiopia, Namibia and Rwanda for hosting the regional consultation workshops. It is commendable that representatives from line ministries and departments responsible for land, civil society, private sector, research and academia provided useful inputs during the regional consultations, which helped to better document realities on the ground with regard to the opportunities and challenges of land governance in Africa.
Immense gratitude goes to the Core Drafting Team of the Framework and Guidelines on Land Policy in Africa chaired by the late Prof Hastings W.O. Okoth-Ogendo, closely assisted
ix by Mr Kwame Gyan, Dr. Joan C. Kagwanja, Ms Susan Mbaya and including Prof Sam Moyo,
Prof Paul Tchawa, Prof Ahmed O. El-Kholei and Dr Hubert Ouedraogo.
The draft Framework and Guidelines received substantive review by an Expert Consultative Team (ECT) which comprised individual land experts as well as representatives of stakeholder and partner institutions: Prof J.M. Lusugga Kironde; Prof Cherryl Walker; Dr Odame W. Larbi; Mr Ibrahim Njiru Mwathane; Ms Priscilla Achakpa (Women Environmental Programme -WEP); Mr Odenda Lumumba (Kenya Land Alliance - KLA); Mr Yufnalis Okubo (IGAD); Mr Martin Bwalya (The New Partnership for Africa’s Development -NEPAD); Dr Chike C. Ezeudeh (ECOWAS); Mr Stephen Nanthambwe (SADC); Mr Harold Liversage (International Fund for Agricultural Development -IFAD); Dr Clarissa Augustinus (United Nations Human Settlements Programme -UN-HABITAT); Dr Klaus Deininger (World Bank);
Prof Paul Mathieu (FAO); Dr Tidiane Ngaido (International Food Policy Research Institute -IFPRI); and Mr Hailemariam Hailemeskel (AfDB). Further comments and guidance were provided respectively by M. Julian Quan of NRI and Mr Bernard Kioko of AUC.
In addition to the ECT, the draft guidelines was subjected to rigorous review by hundreds of stakeholders in Africa who had participated in the regional consultations and other LPI processes. In this regard, Action Aid International, United Nations Development Fund for Women (UNIFEM) and Urgent Action Fund warrant special mention for organizing a consultation at the African Development Forum (ADF) to review the Framework and Guidelines through a Women’s Land rights lens.
The LPI Secretariat comprising Dr Hubert Ouedraogo (Lead Land Expert), Ms Atkeyelsh Persson (Programme Associate), and Ms Tsedey Merid (Programme Assistant), was instrumental in providing technical, programmatic and logistical inputs, for the implementation of the LPI activities.
Significant guidance and support to resource mobilization and financial management were provided by Mr Anthony Nwanze and Ms Elsa Gackiero of ECA.
Many support staff members of the consortium and other partners contributed during the various stages of the process including making preparations for and servicing the LPI meetings. These were: Ms Rahel Menda, Ms Meskerem Melaku and Mr Gezahegn Shiferaw of ECA; Ms Susan Nyinawandoli, Ms Israel Zerom and Mr Yonas Amare of AUC;
Mr Zithobile Kolweni of UNDP; and Ms Sophia Aberra of FAO.
The development of the Framework and Guidelines would not have been possible without the support and collaboration of various donors and development partners who provided critical financial and technical support for the realisation of the activities of the roadmap. These donors and partners were FAO, IFAD, Swedish International Development Cooperation Agency, the Rockefeller Foundation, UN-HABITAT, UNDP and the World Bank.
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Foreword
The Framework and Guidelines on Land Policy is a joint product of the partnership and collaborative effort of the African Union Commission (AUC), the UN Economic Commission for Africa (ECA) and the African Development Bank (AfDB) to promote Africa’s socioeconomic development, through inter alia, agricultural transformation and modernisation. Initiated in 2006, the aim of the Land Policy Initiative (LPI) was to examine land policy issues and challenges in Africa with a view to developing a framework to strengthen land rights, enhance productivity and improve livelihoods.
The Framework and Guidelines provides a clear overview of the historical, political, economic and social background of the land question in Africa and elaborates on the role of land as a valuable natural resource endowment in attaining economic development and poverty reduction. Based on lessons and best practices identified in land policy development and implementation across Africa, it outlines how the land sector should perform its proper role in the development process. The Framework and Guidelines promotes the need for a shared vision among all stakeholders of a comprehensive and coordinated land policy as a major factor in national development. It urges African governments to pay attention to the status of land administration systems, including land rights delivery systems and land governance structures and institutions, and to ensure adequate budgetary provision to land policy development and implementation.
Progress will require the development of tracking systems and mechanisms of land policy formulation and implementation that will enable African governments learn from past successes and setbacks, and make timely readjustments to national land policy processes.
This Framework and Guidelines is much more than simply another document on land.
It reflects a consensus on land issues; and serves as a basis for commitment of African governments in land policy formulation and implementation and a foundation for popular participation in improved land governance. Its other fundamental purpose is to engage development partners in resource mobilization and capacity building in support of land policy development and implementation in Africa.
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The Framework and Guidelines has been developed through a broad consultative and inclusive process and is based on rigorous analysis and assessment of factual situations and realities. It was endorsed by the Joint Conference of Ministers of Agriculture, Land and Livestock held in April 2009 in Addis Ababa, Ethiopia, while the 13th Ordinary Session of the African Union Assembly of Heads of State and Government held in July 2009, Sirte, Libya, adopted the “Declaration on Land Issues and Challenges in Africa”
urging the effective implementation of the Framework and Guidelines on Land Policy in Africa. The Assembly further requested the African Union Commission, in collaboration with ECA, AfDB and the Regional Economic Communities to support Member States in their efforts towards reviewing, developing and implementing land policies including mechanisms for progress tracking and reporting.
The AUC-ECA-AfDB Consortium has engaged with key development partners in seeking support at regional and national levels for this work and wishes to express gratitude for their support at the different stages of the process and for helping to move the agenda forward. We strongly hope that this exemplary engagement will continue during the implementation phase to achieve successful results.
A viable Land Policy is a sine qua non for Africa’s realisation of its development agenda.
We, therefore, strongly recommend this Framework and Guidelines to all stakeholders including policy and decision makers, practitioners, and Civil Society Organisations, as an integral toolkit and reference for developing efficient national and regional land policies and programmes.
Jean Ping
Chairperson of the African Union Commission
Abdoulie Janneh UN Under-Secretary-General
and Executive Secretary of the United Nations Economic
Commission for Africa
Donald Kaberuka President of the African
Development Bank
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Definition of key terms
“Agrarian reform”: a process of “land reform” which also addresses the political economy and ontological context in which rural society uses land resources.
“Civil society”: non-state actors in decision-making.
“Land administration”: the structure and processes for the determination, archiving and delivery of land rights, and the systems through which general oversight on the performance of the land sector is managed.
“Land governance”: the political and administrative structures and processes through which decisions concerning access to and use of land resources are made and implemented including the manner in which conflicts over land are resolved.
“Land information system: a set of principles governing the collection, processing, storage and use of data on land ownership, usage, quality, location and change over time and the body of data sets prepared for use in decision-making on the basis of those principals.
“Land policy”: the set of agreed principles to govern ownership (or access to), use and management of land resources to enhance their productivity and contribution to social, economic, political and environmental development and poverty alleviation.
“Land reform”: a process which involves comprehensive restructuring or redesign of at least three components of the land system; namely its property structure, use and production structure and the support services infrastructure.
“Land tenure”: the nature of and manner in which rights and interests over various categories of land are created or determined, allocated and enjoyed.
“Natural resources”: the constellation of all biotic and non-biotic substances which naturally occur on and are sustained by the physical solum including water
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Executive Summary
In 2006, the AUC, the UNECA and the AfDB initiated a process for the development of a framework and guidelines for land policy and land reform in Africa with a view to strengthening land rights, enhancing productivity and securing livelihoods for the majority of the continent’s population. That initiative was carried out by way of extensive consultations involving the participation of RECs in all the five regions of the continent, civil society organizations, centres of excellence in Africa and elsewhere, practitioners and researchers in land policy development and implementation, government agencies and Africa’s development partners. The final outcome of the initiative was then presented before the formal decision-making processes of the AU for approval and adoption by the Assembly of Heads of State and Government in July 2009.
The Framework and Guidelines (F&G) which follow are presented in seven interrelated chapters. Chapter One provides the justification for and process followed in developing the F&G. Chapter Two describes the context which has defined the nature and characteristics of the land question in Africa in order to explain the reason why the land sector has not played its primary role in the development process. That role is examined in Chapter Three. Chapter Four sets out the key operational processes which African countries will need to follow in order to develop comprehensive policies that would enable the land sector to fully perform that role. Chapter Five analyses the difficulties likely to be met and conditions necessary for the effective implementation of such policies. Chapter Six discusses the measures which African countries may wish to put in place to track progress in the development and implementation of those policies. The final chapter is a concluding statement on how member countries of the AU might want to use the F&G.
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1 Background
1.1 Justification
1.1.1 The mandate of the African Union
The Constitutive Act of the African Union places emphasis on the sovereignty and the sovereign equality of member states1. All member states thus have the right to decide their own policies. The purpose of this Framework and Guidelines, therefore, is neither to develop a normative framework intended to be binding upon, nor to draft a land policy for adoption by member states.
Further, it is not the objective of this Framework and Guidelines to instruct member states on how to formulate land policy in their specific country situations.
The Framework and Guidelines recognizes nonetheless that most countries regard the proper management of land as an important factor in development and ensuring or preserving peace and security. This is evident in the fact that a growing number of African member states have embarked on land policy reforms with a view to addressing prevailing land issues in the context of sustainable national development. Significant diversity is apparent however in the drivers that compel states to embark on these reforms, the level of comprehensiveness, the capacities for initiating, planning and implementing them and, consequently, the extent to which they have been achieved. The Framework and Guidelines recognizes further that to date, these reforms have proceeded in the absence of any articulated continental guidance or national consensus on the vision which should inform such reforms. In addition limited exchange of information and sharing of experiences and best practice have taken place across member states even where land and associated resources are shared by two or more states. There is also evidence
1 The Constitutive Act of the African Union, 2000
2
that many African countries have, over time, accumulated a multiplicity of sectoral policies and laws relating to land, its management and use without over-arching policies which rationalize, harmonize and clarify the otherwise uncoordinated approaches and complex interactions between these sectoral laws and policies.
This is the primary context which justifies a pan-African framework to assist member states in the process of undertaking or embarking upon and harnessing land policy reforms in the interests of their national development objectives.
1.1.2 The purpose of the Framework and Guidelines
Given that context, an attempt is made in this Framework and Guidelines to articulate some of the principles which should inform the development, content and implementation of land policies in African member states.
Specifically the Framework and Guidelines seeks to:
offer a basis for commitment by African a.
member states to the formulation and operationalisation of sound land policies as a basis for sustainable human development that includes assuring social stability, maintaining economic growth and alleviating poverty and protecting natural resources from degradation and pollution.
promote consensus for shared principles b.
as the basis for securing access to land for all users, enhancing agricultural productivity and sustaining livelihoods underscore the need for popular c.
participation in land policy formulation
and implementation so as to facilitate improved governance of land resources suggest standards for best practices for d.
land policy reforms and benchmarks for the performance of land institutions that member states can adopt in keeping with their respective contexts
articulate a policy framework for e.
addressing emerging issues and anticipating future trends relating to land resources,
provide a basis for more coherent f.
partnership between states, citizens and development partners in land policy formulation and implementation on the continent
establish general principles for engaging g.
development partners for the purposes of mobilising resources for building capacities for transformative land policy reform processes, and
develop guidelines for regional h.
convergence on the sustainable management and utilization of land and associated resources shared by two or more member states in various parts of Africa
1.2 The Process of Developing the Framework and Guidelines
1.2.1 The beginning of the process
In 2006 the African Union Commission (AUC), the UN Economic Commission for Africa (ECA) and the African Development Bank (AfDB) initiated a joint process of developing a framework for land policy and land reforms in Africa with a view to strengthening land rights, enhancing productivity and securing
3 livelihoods. Building upon and complementing
national and regional processes for land policy development and implementation, the process was conducted in close collaboration with Regional Economic Communities (RECs). African ownership of the process and envisaged end- product was ascertained through mobilising African expertise through the participation of African Member States and other African non- state stakeholders.
1.2.2 The extent of consultation
The first step in the process of developing the land policy framework was a consultative continental workshop, which took place in March 2006 in Addis Ababa. The workshop brought together representatives from African governments, RECs, civil society including farmers’ organizations, African private sector representatives, Centres of Excellence, and Development Partners. The workshop established consensus around the elements and thematic issues that would characterize the framework, the features of a vision and guiding principles for the framework, actions and sequential activities of a roadmap, needed to develop a land policy framework, the roles of stakeholders and partners, and strategies for resource mobilization. The outputs of the workshop were a background document summarizing the main land issues in Africa that should be used as the basis for developing a preliminary outline of a land policy framework for Africa.
In the second step of the process, the RECs played a lead role in regional processes. These were successful in raising land policy issues that highlighted regional specificities. The RECs began by conducting regional assessments which resulted in the production of five Regional Background Papers highlighting existing initiatives and lessons that could enrich the framework . The assessments were followed by Regional Consultative Workshops hosted by the AU-ECA-AfDB. The workshops in Southern, Eastern, West, Central and North Africa were held between August 2007 and December 2008. Using the background document as well as regional assessments as the basis for discussion, the consultations in each region revisited the preliminary outline developed after the 2006 Consultative Workshop in the light of regional specificities, initiatives and lessons, thereby enriching it. The regional consultations also identified challenges, knowledge, institutional and resource gaps as well as on-going initiatives to assist in mapping out strategies for capacity building and lesson- sharing activities; that would be vital to the implementation of the framework. The key final outcome of the regional consultations was thus an enriched draft of the continental framework. In addition, regional background documents were also developed outlining the key elements and processes needed for the medium-and long-term implementation of the framework. The full extent of regional consultations is set out in Box 1 below.
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Box 1: Regional Consultations
Region Dates Venue RECs involved
1 Southern Africa 29- 31 August 2007 Windhoek, Namibia SADC
2 Eastern Africa 16- 18 January 2008 Kigali, Rwanda IGAD
3 West Africa 15- 18 April 2008 Ouagadougou, Burkina ECOWAS/ CILSS
4 Central Africa 6- 8 August 2008 Yaoundé, Cameroon ECCAS
5 Northern Africa 3-5 December 2008 Addis Ababa, Ethiopia CEN-SAD
the Expert’s Report and Recommendation on the Framework and Guidelines. This launched the Framework and Guidelines onto the formal policy-making processes of the AU Summit for consideration and adoption.
1.2.4 The Summit of Heads of States and Governments
Following scrutiny by the Permanent Representative Council (PRC), the Executive Council (EC) of the Assembly prepared a draft Declaration for consideration, review and adoption by the Assembly of African Heads of State and Government. The Declaration containing resolutions and decisions on its implementation and follow-up was endorsed by African Heads of States and Government at AU Summit in July 2009.
1.2.3 The meetings of African Experts and Ministers
An African Experts Meeting bringing together key experts from land related line ministries of all AU member States comprised the fourth step of the process. At this meeting, the draft framework was subjected to an extensive review and discussion. The key outcomes of the experts meeting were a refined draft of the framework and an Experts’ Report on the land policy framework. The Experts Report included key recommendations on the implementation of the framework. Both documents were sent to the ministerial meeting, which was the fifth step in the process.
At the Meeting of African Ministers Responsible for Land, the Ministers reviewed and adopted
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2 The Context of the Land Question
2.1 Conceptualising the Land Question
The land question facing Africa has its origins in geo-political, economic, social and demographic factors more recently compounded by emerging global and strategic imperatives. These include different forms and modes of colonization experienced in various regions, the diversity and degree of persistence of indigenous cultural and normative systems and forms of economic organizations. These factors and imperatives have, in turn, given rise to a variety of legal regimes relating to land tenure, use, management and environmental governance.
In addition, contemporary processes of social organization and mobilization including those derived from class, gender, region, culture, ethnicity, nationality and generational cleavages now predominate in shaping access to, control and utilization of land, resulting in a complex basis of claims and conflicts over land resources. While these diverse contexts have led to variations in national approaches to land policy and land reforms, it is also the case that some commonalities and challenges have emerged leading to similar responses in the design of new land rights regimes.
2.2 The Geographical and Ecological Context
One of the key aspects of Africa’s land question is that in spite of extensive dependence on farming, not much of the continent’s land is arable or potentially arable. Large parts of the continent are deserts or semi-arid, and/or facing ecological damage. In many instances, unequal distribution of land has relegated a growing population of small farmers onto marginal areas leading to increasing physiological pressure and land and resource degradation including deforestation. In many parts of the continent, erosive downpours accompanied by flooding and intermittent droughts have also tended to accelerate soil exhaustion and land cover losses. This remains
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true despite the continent’s enormous and untapped subterranean resources.
2.3 The Political Context
2.3.1 Colonial origins of the land question
Africa comprises five regions carved out into fifty-two countries with diverse political histories of colonial rule. The majority of these countries were colonized by Britain (through direct or indirect rule) others by the French (through assimilation strategies) Belgium, Portugal and Spain. German rule in Cameroon, Tanzania and Namibia was short-lived, while Apartheid South Africa; (itself first colonized in the 17th century by Dutch settlers and later by the British) also governed Namibia in the 20th century.European settlers gained control over land through “agreements”, conquests and appropriation. Direct control of land and engagement in agriculture was prominent in Southern Africa (i.e. South Africa, Zimbabwe, Namibia) and in North Africa (Egypt, Algeria and Libya), Kenya in East Africa, Ivory Coast in West Africa, and to a lesser extent in the DRC and Cameroon in Central Africa. The consolidation of such control and subsequent regulation of acquired lands was effected through the promulgation of a variety of European laws, and establishment of political, administrative and economic management systems, which were grafted onto a diverse range of indigenous economic and cultural practices thus leading to dualistic land tenure and land administration regimes.
Independence from colonial rule was staggered over time from the late 1950’s through to the
1990’s, with Zimbabwe, Namibia and South Africa coming last. Thus, the processes of nation building, such as, the establishment of independent political systems and the design of policies and development strategies including land reforms and land policy making, were staggered as well. Land reforms, especially to redress colonially based unequal ownership and to rationalize discriminatory land use policies and insecure land tenure systems begun in the 1950s and continued more vigorously from the 1960s onwards. This took the form of nationalization of settler and foreign corporate lands in Egypt, Algeria, Libya, Tanzania, Zambia, Mozambique and Angola. In the former colonial
‘protectorates’, which faced indirect colonial rule alongside cheap labour migrant systems, (such as in Botswana, Swaziland, Lesotho and Malawi), land expropriation for redistribution was used sparingly in the smaller areas of white settlement. Land acquisitions through market- based compensation, with some finance from the former colonial master, were used in the 1960’s in Kenya, Swaziland and Botswana, and in Zimbabwe during the 1980s. Efforts at the reform of land held by indigenous communities through a variety of measures including individual and group titling or appropriation for cash crop production in a number of African countries however, have been met with limited success as a result of the persistence of social and cultural attachment to land and, in some cases, contestation and conflict, as has been apparent in Kenya, Uganda, Malawi, Zimbabwe, Namibia and South Africa. These efforts have not, in consequence, adequately restructured the dualistic land holding systems resulting from colonization, nor have they improved government support for the development of the disadvantaged indigenous land tenure systems.
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2.3.2 The impact of political liberalization
Liberal political reforms and especially the demise of military and authoritarian rule and the return to multiparty politics in Africa leading to changes in state-society relationships have in turn created opportunities for new approaches to land policy development.
More specifically the overbearing role of the state as owner regulator and user of land resources is being increasingly challenged as land rights communities, non-state regulatory and administrative structures, organs of civil society and other public sector groups demand involvement in land policy development.
2.3.3 Land and conflict in Africa
Despite efforts at the liberalization of political space, the struggle for land and natural resources remains one of the key factors fuelling instability in Africa. In the former settler colonies such as Kenya, Zimbabwe and South Africa, the failure to resolve historical claims arising from colonial expropriations compounded by unequal re-distribution of land after independence, remains a primary source of conflict. In other parts of Africa such as the mineral rich countries of Angola, the DRC, Southern Sudan, Sierra Leone and Liberia, conflicts over land spurred by global commercial interests have been intense. In yet others such as Uganda, Rwanda, Burundi, Somalia the Central African Republic, the Republic of Congo (Brazzaville) and Ivory Coast, persistent conflicts over the last two decades have led to large numbers of internally displaced persons (IDPs) raising complex issues about access to land, resettlement and rehabilitation. Moreover, these conflicts have, in many countries, led to forced evictions and horrific atrocities (including genocide) against non-combatants, mainly women and children. Thus apart from dealing with issues relating to the redress of historical
injustices and the attainment of social equity, land policy development and reform must address the problem of conflict prevention and the restoration of peace and security in Africa.
2.4 The Economic Context
2.4.1 Land in the agricultural economy
The importance of land in development in Africa is underlined by the fact that approximately 60% of the population derives its livelihood and income mainly from farming, livestock production, and related activities. Indeed the contribution of the agricultural sector to the GDP in most countries in sub-Saharan Africa exceeds 25% and is as high as over 40% in countries such as the Central African Republic, the Democratic Republic of Congo, Ethiopia, Guinea Bissau, Rwanda, Sierra Leone, Tanzania and Togo. In addition livestock production is an important activity in the Sahellian countries and in the Horn of Africa.The contribution of agriculture and livestock production to African economies could be considerably enhanced through radical restructuring of a number of constraints. The first is the relatively low levels of agricultural productivity in terms of land and labour in many countries which have led to overdependence on imports for food security. The second is equally low levels of mechanization especially in terms of irrigation development resulting in sub- optimal use of the continent’s land resources.
The third is the persistence of colonial policies that discriminated against the vast majority of African farmers and which continues to inhibit the growth of the small farm sector in terms of investment and infrastructure. Further, macro- economic stabilization policies since the 1990’s, externally-oriented trade liberalization, and
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the deregulation of domestic markets, have restricted the scope and pace of improved land utilization among Africa’s predominantly small farmers, while large-scale commercial farming dominated by elites and foreign landowners is growing.
2.4.2 Land in other sectors of the economy
Beyond agriculture, land continues to be a significant factor in Africa’s economy through its contribution to other sectors. In countries such as South Africa, Mauritius, Kenya, Egypt, Tunisia and Morocco, economic diversification has occurred towards tourism, manufacturing and services, while the economies of others such as Sudan, Angola, Libya and the DRC are increasingly dependent on oil and mineral revenues. In yet other countries such as Zimbabwe, Namibia and Botswana, nature conservancies and woodlands claim a substantial proportion of the land demand.
In addition, the process of urbanization, which is examined elsewhere in this chapter, is creating new and novel demands on land and land related resources for engagement in more sophisticated economic activities such as the provision of recreation, entertainment and catering services irrespective of residential or urban settlement patterns. This new and emerging service economy is becoming an important contributor to the GDP of many countries.
2.5 The Social and Cultural Context
2.5.1 Land and spirituality
To the vast majority of societies in Africa land is regarded not simply as an economic or environmental asset, but as a social, cultural
and ontological resource. Land remains an important factor in the construction of social identity, the organization of religious life and the production and reproduction of culture.
The link across generations is ultimately defined by the complement of land resources which families, lineages and communities share and control. Indeed land is fully embodied in the very spirituality of society. These are dimensions which land policy development must address if prescriptions for change are to be internalized.
2.5.2 Land and gender relations
It must be conceded, however that despite the reverence which surrounds land and land relations in Africa, the system of patriarchy which dominates social organization has tended to discriminate against women when it comes to ownership and control of land resources. This has been re-enforced, first, by imported land law that has tended to cement the system of patriarchy by conferring title and inheritance rights upon male family members on the theory that women, especially married women can only access land through their husbands or male children and second by “claw- back” clauses in many African constitutions and the African Charter on Human and Peoples Rights (ACHPR) permitting discrimination on matters of personal law which often operate against women’s right to equal treatment before the law. If law and policy are to redress gender imbalances in land holding and use, it is necessary to deconstruct, reconstruct and reconceptualise existing rules of property in land under both customary and statutory law in ways that strengthen women’s access and control of land while respecting family and other social networks. This would also be consistent with commitments made by African states as evidenced in the AU’s 2003 Maputo protocol to the ACHPR on the Rights of Women
9 in Africa and the 2004 Solemn Declaration on
Gender Equality in Africa both of which call for action to address gender inequalities including women’s unequal access to land. This is all the more important as women remain the primary users of agricultural land in most African communities.
2.5.3 Other forms of marginalization
Beyond the frequently acknowledged inequalities due to race, class and gender, the marginalization of particular ethnic groups with respect to access to adequate land remains a perpetual source of conflict. The marginalization of certain categories of indigenous people such as the San of Botswana; the Herero of Namibia;the Bakola, Bagyeli and Batwa of the countries of Central Africa; and the Ogiek of Kenya, has become contentious. Land policy reforms must also address these concerns.
2.6 The Demographic Context
2.6.1 Population growth and migration
Through a combination of factors including population growth, migration and urbanization, the overall per capita availability of land (particularly agricultural land) is decreasing in many countries. In a number of countries, such as in West Africa, as much as 50% to 75%of the populations live on about 25% of the national land along the coastal zones, leading to much higher densities in these areas. At current urban growth rates exceeding 3.5% per annum in many countries, this trend is likely to exert severe pressure on urban and peri-urban infrastructure and services.
2.6.2 Urbanization
Much of the African continent is still in the early
stages of urbanization with only 38% of the people classified as urban, the rate of change of this transition is currently and will continue for several decades to be the highest in the world.
By 2050, for example, half of Africa’s population, or at least 1.2 billion people, will live in urban areas thus accounting for one quarter of the world’s urban population. Much of this growth will be evident in Africa’s capital cities where an aggregate of over 10% of the urban population of most countries often reside. Although the extent of urban concentration will continue to vary from country to country with South Africa, Zambia, Mauritius, Gabon and Egypt already at between 40% and 58% and others generally below 20% of their total populations, urbanization throughout Africa is still essentially driven by large scale migration from the country side as a result of a variety of factors including poverty, famine, drought, disaster, conflict and the general perception that the cities offer a better quality of life. An important factor to note, however, is that urbanization in Africa will continue to be characterized by informal settlement developments where over 60% of urban residents currently live. This is a phenomenon which will continue to compound inequalities in access to development resources in these areas; a factor which in turn has a direct impact on social and economic stability particularly in primary cities that are important drivers in national economies.
Finally a persistent phenomenon in the urban areas is the systematic discrimination against women in education, housing, access to land and opportunities to pursue basic livelihood skills despite the existence of formal gender- neutral laws. Much of this is as a result of social realignments in urban politics and economy and the primary perception of women’s roles as being mainly dependants. Although there are indications that many women are beginning to
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take advantage of opportunities and challenges presented by urbanization, progress towards active participation in urban politics and economy remains relatively slow.
2.7 Emerging Global and Strategic Issues
2.7.1 An overview
A number of changes in the global environment politics and economy are beginning to exert new and significant impacts on Africa’s land resources. The most visible of these are in response to changes in the global ecosystem, demand for energy supplies and rapid increase in foreign direct investment (FDI). An important challenge for the state in Africa will be to put in place adequate policies to ensure that the risks associated with these changes and, in particular the risk of uncompensated loss of land rights by the poor are avoided or effectively managed.
2.7.2 Global climate change
The impact of global warming on climate change is expected to affect land use systems in Africa, although its extent and magnitude is still unfolding. Nevertheless direct impacts such as reduced availability and scarcity of water, saline intrusion, increased temperatures, biodiversity loss and desertification as a consequence of more frequent droughts, are now known to reduce productivity of land and hence likely to accelerate poverty. In as much as the African continent contributes least to green house gas emissions (GHCs) which are primarily responsible for global warming, the overall impact of climate change on the continent’s ecosystems will continue to be disproportionately severe. Land policy reforms will need, therefore, to pay particular
attention to the design and implementation of mitigation and adaptation measures, including the mobilization of capacity to manage long- term implications of such change. For coastal countries evidence already indicates that rising sea levels will require relocation of populations, innovative land use planning and massive land acquisitions accompanied by large scale infrastructure and service delivery not to mention the costs associated with the flow of
“climate” refugees into the contiguous urban areas.
2.7.3 Food supplies, prices and changing land uses
The recent surge in world food prices and food supply bottlenecks have tended to affect Africa the most, given the continent’s current food production deficits and increasing dependence on imports and food aid. Rising food prices are the result of complex interactions between a number of major factors including the diversion of land resources and farm inputs towards the production of food grains and oil seed for agro- fuel stock feeds in North America, and Europe, the failure of African countries to pursue policies that promote increased agricultural productivity and persistent inequities in the global trade system. Land policy reforms will have to address these issues.
2.7.4 The new scramble for Africa’s land resources
The first ‘scramble for Africa’ which took place in the 19th century involved Belgium, France, Britain Portugal and Italy carving out sections of the continent and sharing the spoils. Since then these nations have receded in political strength in comparison to the United States of America and China. What has not changed, however, is the importance of Africa to western
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in natural resources. In recent times, the significance of bio-fuels, minerals and oil has gained prominence. Increased oil production from existing discoveries in African countries has taken on a new strategic significance in the light of the unpredictability of future Middle East oil supplies, the USA’s apparent insatiable appetite for oil, and China’s colossal energy and raw material requirements. The accelerated exploitation of resources by, together with the establishment of, industries and processing infrastructure in these countries, have led directly to a ‘new scramble’ for Africa’s land resources..
While this new scramble for Africa is often discussed primarily in the context of valuable mineral endowments, the concept has become more widespread, as demonstrated in relation to demand for land for a wide range of investments in timber, tourism, commercial development, and lately food production for consumption abroad. The question to be asked is whether these foreign demands can be met while observing sustainability guidelines and without marginalizing the land rights of African communities.
2.7.5 Regional co-operation and integration
Increasingly African countries are embarking upon regional cooperation and integration, under the auspices of various pan African and sub-Regional organizations. A growing number of cross-border developments point to the need for co-operation over many
issues including migration, the movement of pastoral communities, refugees, trans- boundary ecological stresses (land and water degradation, desertification, and deforestation).
Thus RECs currently have agreements on the management of shared water, forest resources and desertification. Civil society organizations are also mobilizing in a bid to influence land and resource management policies across national boundaries. Regrettably, however, these ongoing regional cooperation and integration initiatives have not resulted in binding convergences in land policy frameworks, processes and management systems.
2.8 Implications for the Role of Land in the Development Process
The contextual issues set out above are important in a number of ways. First, they enable governments to identify the critical questions and challenges which must be tackled and opportunities which must be seized if the land sector is to play its primary role in Africa’s development process. That clearly must be the starting point in any meaningful process of policy development and reform. Second, they provide a basis for realistic policy development and reform in the land sector. Third, they point to the fact that although national strategies on how to resolve these issues may vary, there are important commonalities in terms of their origin and characteristics which make the sharing of experiences across countries useful and even critical. These are elaborated further in the chapters next following.
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3 Land in the National Development Process
3.1 Recognizing the Centrality of Land in Development
Although land is central to sustainable livelihoods in Africa, development initiatives in many countries do not always take comprehensive account of this reality. African governments need to take appropriate measures to ensure that land plays its primary role in the development process and more particularly in social reconstruction, poverty reduction, enhancing economic opportunities for women, strengthening governance, managing the environment, promoting conflict resolution and driving agricultural modernization.
It is nonetheless encouraging to note, that many African governments have begun to make important changes in the institutional structures of government to enable more systematic consideration of land, and the environment in policy-making in general. New forms of dialogue are also developing across the continent in support of better synergies among stakeholders including national and local governments, industry, science, civil society organizations and the public in the process of developing effective approaches to the integration of land in sustainable development.
3.1.1 Demonstrating commitment to land policy development
The commitment of the African Union to the eradication of poverty is evidenced in several initiatives, including NEPAD and its long-term objectives which include eradicating poverty in Africa and placing African countries, both individually and collectively, on a path to sustainable growth and development and halting its marginalization in the globalization process. Under the African Union, African leaders are committed to taking joint responsibility for strengthening mechanisms for conflict prevention, management and resolution as well as promoting and protecting democracy and human rights.
As members of the United Nations, African countries are also committed to
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the attainment of the Millennium Development Goals (MDGs) among which are the eradication of extreme hunger, poverty reduction and gender equality. These call for land policies which support a wide range of economic, social and political objectives including the prevention of conflicts and their prompt and effective resolution through mutually acceptable dispute processing mechanisms. When acceptable to a broad stakeholder base effective land policies will also play a role in peace-building by inspiring a higher degree of trust in regulatory systems among various interests competing for scarce land resources.
3.1.2 Integrating land issues into decision- making processes
The administration of land resources has an important bearing on the democratic process.
Structures governing access, control and management of land are as much about the consolidation of democracy as they are about asset stewardship. Linked to this is the need to integrate land administration and management into systems of governance at all levels. Best practice points to the fact that devolution of power over land management and the decentralization of the delivery of land services to local land governance institutions are key considerations if inefficiency and corruption are to be exposed and addressed. This orientation will require readjustments or even fundamental reshaping of economic and political decision- making processes.
Further policy making processes should promote holistic approaches instead of the tendency to pursue sector specific paths or foci to policy development with little or no co-ordination or harmonization with other sectors and cross- cutting policies. This would entail ensuring that
all necessary linkages within and contributions of land related issues to other development processes are accounted for. The integration of land policy with natural resource management strategies and poverty reduction programmes would be of particular – but not exclusive – importance in this regard.
3.1.3 Acknowledging the legitimacy of indigenous land rights systems
A major continual challenge which evolving land policies have to face, especially in sub-Saharan Africa, is the need to blend tradition and modernity in land rights regimes. In this respect land policies should seek to remove age-old rigidities in traditional structures and systems which tend to discriminate against women while at the same time building on and thereby improving indigenous tenure arrangements. In thus acknowledging the legitimacy of indigenous land rights, land policy processes must also recognize the role of local and community-based land administration/management institutions and structures, alongside those of the State.Land policy processes should also seek to provide for the necessary interface between state and indigenous systems, particularly with regard to the certification of land rights, the empowerment of decentralized institutions in land rights administration, and the management of land as a resource at the local level. Colonial legacies which tended to denigrate indigenous land rights systems and suppress and sabotage their evolution and which ignored community land administration structures must now give way to new and innovative policies including the provision of statutory frameworks for the documentation and codification of informal land rights regimes. It is encouraging that a number of African countries including Ethiopia, Southern Sudan, Ghana and the pastoral communities of the Sahel are already moving in this direction.
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3.1.4 Strengthening the land rights of
women
Throughout Africa, agricultural production and preservation of land resources is primarily the responsibility of women and children. It is still generally the case, however, that gender discrimination in access to land resources is a serious problem particularly in rural Africa.
This is both undemocratic and a constraint on economic development. Better and more productive use of land requires that the land rights of women be strengthened through a variety of mechanisms including the enactment of legislation that allows women to enforce documented claims to land within and outside marriage. This should come hand in hand with equal rights for women to inherit and bequeath land, co-ownership of registered land by spouses and the promotion of women’s participation in land administration structures. To ensure full enjoyment of land rights, these measures must be part of an ideology which removes issues regarding the land rights of women from the private sphere of marriage and family, and places them in the public domain of human rights.
3.2 Mainstreaming Land in Poverty Reduction Programmes
3.2.1 The persistence of poverty in Africa
Poverty, which refers to an inability to satisfy basic needs, is widespread in both urban and rural settlements in Africa. Equally distributed and effectively managed, land can be instrumental in eradicating poverty. Securing land tenure, redistributing land, to those in need, improving access to land resources and spreading land related services can also contribute to poverty eradication. This will require a number of specific policy strategies.3.2.2 Enhancing access to land through tenure reform
Provision of secure access to land through various forms of tenure will facilitate economic opportunity and livelihood security for all land users. Tenure reforms accompanied where necessary with programmes of land redistribution will improve access to land and confer security for vulnerable groups, especially women who constitute most of the urban and rural poor. Addressing the issue of tenure security is particularly important if the cycle of dependency and systemic and institutional poverty among these groups is to be broken and if women are to be protected against the tendency towards high risk behaviours especially in times of crises caused by pandemics such as HIV/AIDS and persistent conflicts in Africa. The choice of which tenure systems to adopt will depend on the specific context and production system in operation in each country.
3.2.3 Balancing pro-poor priorities with market orientation
Many African countries perceive an apparent contradiction between the pursuit of pro- poor strategies of land development on the one hand and market-driven options on the other. Mainstreaming land issues in poverty reduction strategies requires that these apparently inconsistent objectives be engaged and rationalized. In particular, there is need to ensure that adequate measures are put in place to ensure that increased market-driven policies of land development do not expose vulnerable groups, particularly women, to further marginalization through speculation and costly land rights transfer systems.
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3.3 Making Agriculture an Engine of Growth
3.3.1 Creating an enabling environment for agriculture
In most African countries, agriculture is the main source of livelihood for the majority of the population and major contributor to economic growth. Land is important for all forms of agricultural production, including cereals, horticultural products, livestock, fishing, and hunting. Land is also a major factor in the processing and marketing of the products derived from these activities. All African countries still have traditional systems for the management and administration of land. These systems which are not always homogenous even within the same country, can, more or less, be either conducive or counterproductive to effective management of land for agriculture. A number of improvements in the land sector will be necessary to ensure that an enabling environment is created for agricultural development.
3.3.2 Clarifying property rights in agriculture
One such improvement is to ensure that the systems of property under which land is held and used is clarified for the variety of agricultural forms and participants in that sector. This is crucial not only for rural farmers, particularly women who produce most of Africa’s food crops and whose access to land is based on various indigenous tenure systems, but also for foreign or local commercial investors, some of whom seek to engage in large scale operations (including extensive irrigation networks). The ability to secure access to land resources through a variety of tenure systems
that guarantee returns for short or long term investments is important for the improvement of agricultural productivity in general and food security in particular. Clear property rights in agriculture also have the potential of increasing revenues through taxation and enhancement of agricultural exports.
3.3.3 Promoting the development of land rights transfer systems and markets
Yet another improvement is to create an enabling environment for the transfer and exchange of land rights either formally through documented transactions or informally through intra-family or community arrangements.Promoting the development of robust land rights transfer systems and markets offering various types of rights (whether primary or secondary) will expand opportunities for the acquisition of land resources for many agricultural users engaged in large or small scale, formal or informal operations. Properly regulated, this kind of flexibility can be of great value to those whose land rights are precarious especially women and people living in informal settlements in the agricultural or urban sectors.
That flexibility will need to be accompanied by the support services infrastructure, particularly low-cost credit facilities, which will enable such groups take full advantage of the market.
3.4 Managing Land for Other Uses
3.4.1 Land needs for other uses
Beyond agriculture, land is an important factor for many other uses that are increasing in importance to the development of African economies. These include manufacturing, mining, energy development, the development of physical infrastructure in the rural areas, the management of sustainable urbanization,
